The Debt Limit: Faithful Execution

If the current “debt limit” hostage negotiations fail—and they deserve to fail if their result is economically suicidal short-term cuts in public services and/or draconian longer-term cuts and/or no or almost no upper-end tax increases—will President Obama seize the Constitutional option?

I’m not talking about, or only about, the much-discussed Section 4 of the Fourteenth Amendment, which says, “The validity of the public debt of the United States, authorized by law, … shall not be questioned.

I’m talking about Article II, Section 3, which says that the President “shall take Care that the Laws be faithfully executed.”

A fine admonition. But what happens when the Laws contradict each other so blatantly that not all of them can be executed, no matter how faithful the President?

Over time, Congress has made laws that govern the collection and expenditure of public funds. If, in a given year, the funds expended exceed the funds collected, the President can faithfully execute those laws only if the Treasury borrows the difference. The amount borrowed—the deficit—is added to the existing public debt, which likewise has been accumulated in consequence of laws enacted by Congress.

Congress has also made a law which states that Congress can subsequently decree that the government may no longer borrow the money to meet the obligations which Congress itself has enacted into law.

The President must therefore ask himself: Which of these laws shall I faithfully execute? The many or the one?

Common sense suggests that he should choose to execute the many, especially when executing only the one would entail not only measurable human suffering but also the national and global economic catastrophe that would probably accompany the destruction of the full faith and credit of the United States.

If the balance still needs to be tipped, though, the Fourteenth Amendment ought to tip it.

To be sure, Section 4 is open to varying interpretations. Here it is in full:

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Plainly, the main goals of the drafters were to keep some future Congress, in which the states of the former Confederacy would be represented, from stiffing the widows and orphans of the Union Army, or turning around and honoring Confederate bonds, or reimbursing former slaveholders for the loss of their “property.” So there is a plausible argument that it shouldn’t apply to a debt-questioning law a century and a half later. On the other hand, the amendment’s original language limited its scope to these goals, but the final version was broadened so that it only includes them.

President Obama has pointedly declined to rule out the Constitutional option, and he would be well within his rights to exercise it. Interestingly, Secretary Geithner has been remarkably serene in his assurances that default simply ain’t gonna happen. Perhaps he knows that the Administration has this particular card up its sleeve and is willing to play it.

Politically, the Constitutional option would have a salutary side effect. It would reverse the demoralization with which the President’s willingness not only to negotiate with the Republican hostage-takers but also to accede in advance to almost all of their demands has infected his own supporters. It would show some fighting spirit. It might even be the domestic-policy equivalent of the bin Laden raid. Admittedly, it might also spur the House Republicans to impeach the President. They’re just crazy enough, or scared enough of their Tea Party base, to do it. But remember how that worked out last time? And this time, the President would be impeached not for lying about sex but for saving the country.

Needless to say, coarse political considerations such as these should not be decisive in weighing such a momentous decision. But it would be nice, wouldn’t it?

Hendrik Hertzberg is a senior editor and staff writer at The New Yorker. He regularly blogs about politics.